First Sale, Part 1

Fear and uncertainty about copyright law often plagues educators and sometimes prevents creative teaching. This course is a professional development opportunity designed to provide a basic introduction to US copyright law and to empower teachers and librarians at all grade levels. Course participants will discover that the law is designed to help educators and librarians.

DR

Absolutely great training for librarians and archivists! As a librarian I left the course feeling confident in making decisions and with plenty of tools to address practical problems in my work.

AT

Aug 05, 2016

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This is a fabulous copyright course for academic professionals! If you've ever had questions about copyright law in an academic context, take this course!

从本节课中

Owning Rights

For this module, we will discuss copyright ownership and what it means in an educational context. We will also discuss the public domain, the first sale doctrine, and the idea/expression dichotomy. This last concept—that creative expression can be copyrighted, but that the ideas behind it cannot—is one of Anne’s favorite topics in copyright law. As you’ll see in the video, the concept is applicable to many subjects and situations.

教学方

Kevin Smith, M.L.S., J.D.

Former Director, Copyright and Scholarly Communication

Lisa A. Macklin, J.D.,M.L.S.

Director, Scholarly Communications Office

Anne Gilliland, JD, MLS

Scholarly Communications Officer

脚本

Today we're going to talk about first sale and copyright. So, one of the things that's really interesting about copyright is that in, in copyright, the physical object and the copyright can exist separately, and each have sort of different rules about how they're used. And, copyright law very explicitly says in the statute that, that those two things happen together and separately, and simultaneously, most of the time. So one of the things that is prevalent through many types of many types of intellectual property law, is the idea of the principle of exhaustion. And, I, really love that phrase, the principle of exhaustion. >> [LAUGH]. >> [LAUGH] And the idea-. >> Seems to apply a lot. >> I know [LAUGH]. >> Doesn't it? [LAUGH]. >> [LAUGH] Yeah. Why didn't I know about this long ago? So the, the principle of exhaustion in copyright says that, after the first sale of the material, the right in the physical copy is exhausted in certain situations, and it's run out. So, that means, for example, that after you've bought a book, you can then do other things with that book. You don't own the copyright in that book if you weren't the creator or the person who received the copyright in some sort of transfer. But you're able to sell the book, lend the book, set the book on fire if you want to. Do all kinds of things the law says sell or otherwise dispose of, of it. Of course libraries are all about this principle because we're full of books that we lend. We bought the book once and then lend it out. And the statute does have some limits, on lending of sound recordings and computer software but libraries are allowed to lend those materials as well. So. >> So other consumers can't? >> Right, right. >> But libraries can. Whereas other consumers can resell their books or lend them. >> Right, right, yes, yeah, and so, you can see the interests that were in play in making those limitations. >> Sure, sure. >> Yeah. One of the things that sort of has bedeviled people about first sale is the phrase in the statute that says that the copies need to be lawfully made under this title for libraries to lend them. It's, it's, in the, in the, that part of the law which is section 109 several times. And, you know, what does under this title mean? That's been the source of a lot of controversy and, and some litigation in the last few years. Some examples of, for sale. We talked about library lending of all kinds of material, not just books but also CDs, video, et cetera. The ability to sell used books is something that a lot of us take advantage of but the buying and the selling and the fine art market for paintings and art of all kinds. Gray market and resale businesses, a big, big part of life today. eBay things like that are, are run in part because of the first sale. So even though, say for example, if you buy a pair of shoes on eBay, the shoes as useful objects may not be copyrighted but perhaps design elements are and, so, copyright comes into that world as well. >> That's a really great point. >> It is. >> It, first sale has a lot of implications that we don't. >> Mm-hm,. >> Usually think about when we just think about lending books. Another one that comes to my mind is the ability for a museum to display paintings. >> Exactly. >> Because the law specifically says that you dont have to own the copyright but if you own the physical object you can display it to people who are physically present at the spot. >> Right. >> Where the object is. And that's what allows library, libraries, excuse me. Art museums, to put the paintings on their wall and make a public display, which wouldn't be allowed except for this exception called for a sale. And they don't usually own the copyright. And it's a good example of how for a sale in, in some ways benefits the creator who. >> Sure. >> In that you know, I wouldn't see certain paintings if, if they weren't in museums. >> Right. >> And, and that's an artist. Yeah. >> And it's how paint, and it's how painters, yes. It's how painters get to be known. How they get to be famous. It's one of the ways in which first sale is very useful. In a world where books and other printed materials were not yet as plentiful as they are now. It was really important to have this doctrine because it allowed the flow of information and the development of culture. So that, you know, one single object didn't lock up culture. And make it impossible for other people to experience it. It still provides a certain level of information equity if you will because of the lending that it allows. Because public libraries can lend books and other materials that their patrons perhaps couldn't afford. So the law recognizes this through- >> Mm-hm. >> Through those expanded rules for libraries that you talked about- >> Right. >> That let us lend things, us being libraries, lend things that maybe other people can't lend, like software. Because it's so important to democratize information, and that's a part of what for sale accomplishes for us. >> Yeah, yeah. It may have been at one time, you know? You, books were very expensive, you only owned, owned five books, and it was crucial to be able to lend them. But even now, there's there's a, a huge desire and demand for that sort of lending and flow. And, and that happens informally with us all the time. It's not unusual for me to read a book and say, oh yeah, now my brother needs to read this book. And I'll send it to him and, and vice versa. That happens on a macro scale. With with first sale and, and lending in, in large research libraries or even small libraries. >> Yeah. >> And it also, this idea of having the first sale goes along with our ideas about physical property in general. So, there's the idea that if I, well, let's say that you own a house. In and you want to sell that house, which he did to me, you, you, you know, it is he, it is his, and he can sell it, and, that same idea carries over into the physical world of the carrier of intellectual property, too. >> That's right. We have a strong presumption in favor of what's called the alien ability of property. Once you own property, you ought to be able to dispose of it. So I was able to sell my house, and I'm able to resell my books. But because intellectual property is kind of a different thing. You know, there's this distinction between the intellectual property, the copyright, and the physical object that instantiates that copyright. There are recurring tensions with first sale, and of course, many publishers of textbooks would really like to find ways to prevent that secondary market. It's good for students, but it's not good for publishers. They lose money because textbooks are resold. So there's a tension, obvious, right there. There's a desire to protect trade and the. Areas, the markets where particular publisher or music publisher, or whoever it is has a market. They want to protect that area and they'd like to keep secondary copies out. Sometimes we're asked about situations where books are marked not for resale, or cds are marked for promotional use only. Those rules really can't be enforced just because they're stamped on the copy. And we actually had a supreme court case way back in 1908. >> Yeah, this isn't a new question. >> No it isn't at all. In 1908 a publisher stamped a book with may not be sold at retail for less than $1, and then sued the department store Macy's for selling the book for $0.86, or something like that. And the Supreme Court decided that, by itself, that stamp that says for promotional use only, or not for resale, is not enforceable. It will not defeat the preference that we have for the alienability of property ohich the doctrine of first sale helps with. Now if you've singed a contract that says that, if you've actually signed a contract or a license agreement, then you may be more restricted. But simply putting it on the title or the cover of a book, or a, or a CD doesn't accomplish it. Another thing that we get asked is, can we add textbooks to library collections? >> Yeah. [LAUGH]. >> Or lend textbooks. And again, normally the answer is yes. It's not necessarily the case the textbook publishers like this, but that's how the law is structured right now. And you know even our, sometimes on our campuses, the bookstores don't care much for it either, but again it's part of democratizing education. It's part of making sure students have access to resources they need.